Exhibit 10.5
ASSET PURCHASE AGREEMENT
AGREEMENT (this "Agreement") dated as of May 27, 1997, between American
Radio Systems Corporation, a Delaware corporation (the "Buyer") and Precision
Media Corporation, a Delaware corporation (the "Seller").
WHEREAS, the Seller is (i) the owner, licensee and operator of four
radio stations, WMYF-AM, broadcasting at a frequency of 1540 khz in and licensed
to Exeter, New Hampshire, WERZ-FM, broadcasting at a frequency of 107.1 mhz in
and licensed to Exeter, New Hampshire, WZNN-AM, broadcasting at a frequency of
930 khz in and licensed to Rochester, New Hampshire and WSRI-FM, broadcasting at
a frequency of 96.7 mhz in and licensed to Rochester, New Hampshire
(collectively, the "Stations") and (ii) the owner of certain land (the
"Premises") and the buildings, structures and improvements (the "Buildings")
thereon located in Exeter, New Hampshire and described in more detail on Exhibit
A attached hereto; and
WHEREAS, the Seller wishes to sell and the Buyer wishes to purchase the
Premises, the Buildings and certain other assets of the Seller relating to the
Seller's operation of the Stations; and
WHEREAS, the purchase and sale of such assets may not be consummated
unless and until the Federal Communications Commission (the "FCC") approves the
transfer to the Buyer of the Seller's FCC licenses to operate the Stations.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. The following terms shall have the meanings
respectively assigned to them below in this Section 1 or in the other provisions
of this Agreement referred to below:
Acquired Assets. As defined in Section 2.
Appurtenant Rights. Shall mean the rights, easements and other
interests appurtenant to the Premises which are described on Exhibit A.
Assumption Agreement. An Assumption Agreement, to be executed and dated
as of the Closing Date, substantially in the form of Exhibit B.
Buildings. See preamble hereto.
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Closing. As defined in Section 5.1.
Closing Date. The date to be designated by notice from the Buyer to the
Seller, or such other date as the parties may mutually agree for the closing of
this transaction; provided, however, that the Closing Date shall not be more
than fifteen (15) days after the date on which there is an effective FCC
Consent; provided, further, in no event shall the Closing Date occur later than
seven (7) months following the date of this Agreement.
Contracts. As defined in Section 2.3.
Deed. A good and sufficient special warranty deed transferring good and
clear record and marketable title to the Premises, the Buildings and the
Appurtenant Rights, subject only to Permitted Encumbrances.
Encumbrances. As defined in Section 7.4.
Escrow Agent. Citizens Bank of Rhode Island, a Rhode Island banking
corporation.
Escrow Deposit. The sum of $600,000 held by the Escrow Agent pursuant
to the Escrow Agreement.
Escrow Agreement. The Escrow Agreement of even date by and among
Seller, Buyer and Escrow Agent, in substantially the form attached hereto as
Exhibit C.
Excluded Assets. As defined in Section 2.4.
Farmington Lease. The Ground Lease dated November 10, 1991 between Xxxx
Xxxxxxx and the Seller (as successor-in-interest to Bear Broadcasting Company)
regarding the Farmington Property, in the form attached hereto as Exhibit E-1.
Farmington Property. The land located on Xxx Xxxxxx, Xxxxxxxxxx, Xxx
Xxxxxxxxx and described in more detail in the Farmington Lease.
FCC. As defined in the preamble.
duly granted by the FCC approving the transfer of the Licenses to the Buyer and
approving thereby the control and operation of the Stations by the Buyer on and
after the Closing Date under conditions that are not less favorable final, that
is, one with respect to which no appeal or petition or motion for rehearing and
no reconsideration or review is pending, and as to which the time for filing or
initiating such an appeal or petition or motion or reconsideration or review has
expired, or, if filed or initiated, has been denied,
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dismissed or withdrawn and the time for any further administrative or legal
proceedings has expired.
FTC. Federal Trade Commission.
HSR Act. The Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended.
Leases. Collectively, the Farmington Leases, the Rochester Lease and
the Stratham Lease.
Licenses. As defined in Section 7.5.
Materially Adverse Effect. Any materially adverse effect on the ability
of the Seller to operate the Stations in accordance with applicable law or to
pay its debts as they become due and payable.
Non-Competition Agreement. The Non-Competition Agreement between the
Buyer and the Seller, to be dated as of the Closing Date, substantially in the
form of Exhibit D.
Occupancy Permit. The certificate of use and occupancy issued by the
Town of Exeter, New Hampshire.
Permitted Encumbrances. As defined in Section 5.2.
Purchase Price. As defined in Section 3.1.
Premises. See preamble hereto.
Rochester Lease. The Lease and Option Agreement dated October 9, 1987
between Xxxxxx X. Xxxxxx and the Seller (as successor-in-interest to Bear
Broadcasting Company, successor-in-interest to Xxxxxxxxx Communications, Inc.)
regarding the Rochester Property, in the form attached hereto as Exhibit E-2.
Rochester Property. The land, buildings and transmitting tower thereon
located at Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxxxxx and described in more
detail in the Rochester Lease.
Real Estate. Collectively, the Premises, the Buildings, the Appurtenant
Rights, the Farmington Property, the Rochester Property and the Stratham
Property.
Service Agreements. All service agreements with third parties, whether
written or oral, relating to the operation, maintenance, security, finance or
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insurance of the Premises and Building Service Equipment, including but not
limited to those described on Exhibit F.
Stations. As defined in the preamble.
Station Records. As defined in Section 11.3.
Stratham Lease. The Lease dated July 9, 1982 between Long Hill
Associates Partnership (as successor-in-interest to Xxxxx Farms, Inc.) and the
Seller (as successor-in-interest to Xxxxxx Communications, Inc.) regarding the
Stratham Property, in the form attached hereto as Exhibit E-3.
Stratham Property. The land and transmitting tower thereon located on
Xxxx Xxxx Xxxx, Xxxxxxxx, Xxx Xxxxxxxxx and described in more detail in the
Stratham Lease.
Time Brokerage Agreement. The Time Brokerage Agreement of even date
herewith, in substantially the form of Exhibit G hereof.
Title Policy. An ATLA standard form title insurance policy issued by
the Title Insurance Company in an amount equal to the Purchase Price insuring
that Buyer or its nominee holds good, record and marketable fee simple title to
the Premises, the Buildings and the Appurtenant Rights, subject only to
Permitted Encumbrances, which policy shall not include any exceptions for (i)
mechanics liens or (ii) persons in possession or occupancy.
SECTION 2. PURCHASE AND SALE; NON-COMPETITION AGREEMENT. Subject to the
terms and conditions set forth in this Agreement, at the Closing the Seller
shall sell and transfer to the Buyer, and the Buyer shall purchase and acquire
from the Seller, all of the assets described in Sections 2.1, 2.2 and 2.3 below
(collectively, the "Acquired Assets") and all of the Seller's interests in and
rights under the contracts and agreements described in Section 2.4 below (the
"Contracts"):
2.1. Tangible Assets. The transmission tower housings on certain of
the Real Estate, the guy wires relating thereto and stanchions or other supports
for the guy wires, and all transmission, studio and other equipment, furniture,
fixtures, motor vehicles, promotional blimps and balloons and other tangible
personal properties located in Farmington, Stratham, Rochester and Exeter, New
Hampshire and environs that are used, necessary or useful in connection with the
operation of the Stations and that the Seller either owns or has the power to
transfer including, without limitation, those listed on Schedule 2.1 (which
schedule shall indicate which assets are owned and which assets are leased or
otherwise held), together with any replacements or modifications thereof and
additions thereto made between the date hereof and
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the Closing Date in the ordinary course of business and in accordance with the
provisions of this Agreement.
2.2. All rights, permits, trade names, service marks, slogans,
customer lists, logos, jingles, goodwill and other intangible property used,
necessary or useful in connection with the operation of the Stations and that
the Seller either owns or has the power to transfer, including, without
limitation, the Licenses and any renewals or modifications thereof between the
date hereof and the Closing Date, the call signs "WMYF-AM," "WERZ-FM,"
"WZNN-AM," and "WSRI-FM", all logos and artwork associated therewith and the
Licenses, including, without limitation, those listed on Schedule 2.2, together
with any replacements thereof and additions thereto made between the date hereof
and the Closing Date in the ordinary course of business and in accordance with
the provisions of this Agreement.
2.3. Real Property and Related Assets. The Buildings, the Premises
and the Appurtenant Rights.
2.4. Contracts, etc. All of the Seller's right, title and interest
in and to those particular agreements, whether written or oral, and any and all
extensions thereof that are used, necessary or useful in connection with the
operation are entered into subsequent to the date of this Agreement and prior to
the Closing Date in the ordinary course of the Seller's business and
consistently with the Seller's customary operation of the Stations, subject to
the are entered into subsequent to the date of this Agreement and prior to the
Closing Date outside of the ordinary course of the Seller's business if the
Buyer on the Closing Date elects to assume such agreements pursuant to the
Assumption Agreement, including, without limitation, the Service Agreements and
the Leases.
2.5. Excluded Assets. The Acquired Assets being sold to the Buyer do
not include (a) the Stations' cash on hand and in banks, (b) the Stations' cash
equivalents, (c) the Stations' accounts receivable, and (d) the rights of the
Seller under this Agreement and the Escrow Agreement (collectively, the
"Excluded Assets").
2.6. Non-Competition Agreement. The Buyer and the Seller shall enter
into the Non-Competition Agreement.
2.7. Employee Matters. Buyer shall have the right, but not the
obligation, to hire substantially all of the employees of the Stations
immediately following the Closing. Except as expressly provided for in the Time
Brokerage Agreement, Seller shall be responsible for all salary and benefits of
the employees of the Stations for the period prior to the Closing Date. All
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employees of the Stations shall cease active participation in all of Seller's
employee benefit plans on the Closing Date, in accordance with the terms of such
plans.
SECTION 3. PAYMENTS.
3.1. Purchase price for Acquired Assets and Contracts. On the date
hereof the Buyer has delivered the Escrow Deposit to the Escrow Agent pursuant
to the Escrow Agreement. At the Closing, the Buyer shall pay to the Seller, as
the aggregate purchase price for the Acquired Assets and Contracts an amount
equal to $6,000,000 (the "Purchase Price"), plus or minus, as the case may be,
the amount of any proration adjustment required by Section 6. The Purchase Price
will be paid by delivery by the Buyer to the Seller of a bank wire transfer or
other immediately available funds to a bank or banks designated by Seller in
writing. In addition to the payment of the Purchase Price, the Buyer shall pay
to the Seller $32,500 each month under the terms of the Time Brokerage
Agreement.
3.2. Allocation of Purchase Price. The Purchase Price shall be
allocated, for tax purposes, in accordance with the results of an appraisal of
the Acquired Assets that is prepared by Broadcast Investments Analysts, Inc.
SECTION 4. ASSUMPTION OF CERTAIN OBLIGATIONS. At the Closing, the Buyer
shall assume and agree to pay, perform fulfill and discharge, pursuant to the
Assumption Agreement, those obligations of the Seller under the Contracts that
accrue after the Closing and that relate to events that transpire subsequent to
the Closing. Anything in this Agreement to the contrary notwithstanding, the
Buyer shall not assume, shall not be deemed to have assumed, and shall not be
responsible for any liability or obligation of the Seller other than those
obligations assumed pursuant to the Assumption Agreement. Schedule 4 attached
hereto sets forth all barter and other trade obligations of the Seller
outstanding on the date hereof.
SECTION 5. CLOSING.
5.1. Time and Place. The closing (the "Closing") of the purchase and
sale transactions contemplated by this Agreement shall take place on the Closing
Date at the offices of Xxxxxxx, Xxxx & Xxxxx at 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx at the time designated in the Buyer's notice to the Seller, or at
such other time and place as the parties mutually agree.
5.2. Transactions at Closing. At the Closing: (a) the Seller shall
duly execute and deliver to the Buyer the Deed and such bills of sale,
certificates of title and other instruments of assignment or transfer with
respect to the Acquired Assets and the Contracts as the Buyer may reasonably
request and as may be reasonably necessary to vest in the Buyer title to all of
the
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Acquired Assets and rights to enjoy and enforce the Contracts, in each case
subject to no Encumbrance except for the Encumbrances specified in Schedule 5.2
(the "Permitted Encumbrances"); (b) with respect to any agreements entered into
subsequent to the date of this Agreement and which were not entered into (i) in
the ordinary course of the Seller's business consistent with the Seller's
customary operation of the Stations or (ii) with the Buyer's written consent,
the Buyer shall notify the Seller which of such agreements the Buyer elects to
assume as Contracts; (c) the Buyer shall deliver to the Seller by bank wire
transfer or other immediately available funds the Purchase Price; (d) the Seller
and Buyer shall execute and deliver the Non-Competition Agreement; and (f) the
Seller shall deliver the Station Records to the Buyer at the Stations.
SECTION 6. ADJUSTMENTS. Except as expressly set forth in the Time
Brokerage Agreement, the operation of the Stations, the Acquired Assets and the
Contracts and the income and the expense attributable thereto, including, but
not limited to, utilities, rent, deposits, prepaid and accrued items, payroll,
vacation and severance pay earned but not paid, and property or other taxes and
assessments applicable to the Acquired Assets and Contracts up to 12:01 a.m.
current local time on the Closing Date shall be for the account of the Seller
and thereafter for the account of the Buyer, and such income and expenses shall
be prorated between the account of the Seller and Buyer and net settlement made
on the Closing Date as far as feasible, by means of an addition to or, as the
case may be, subtraction from the Purchase Price. If the amount of any such
items cannot be readily ascertained on the Closing Date, proration of all such
items shall be made on one occasion as soon after the Closing Date as the amount
thereof is ascertainable, and in any event within ninety (90) days following the
Closing Date. All prorations and adjustments made pursuant to this Section 6
shall be made in accordance with generally accepted accounting principles.
Nothing in this Section 6 shall be deemed to apply to accountants fees,
appraisal costs and legal expenses incurred by either party hereto in connection
with the transactions contemplated hereby.
SECTION 7. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller
represents and warrants to the Buyer as follows:
7.1. Organization Authority; Binding Effect. The Seller is a
corporation duly organized and validly existing under the laws of the State of
Delaware and is duly qualified and authorized to do business as a foreign
corporation in the State of New Hampshire. The Seller has the power to own and
hold the Acquired Assets, to carry on the business of the Stations as now
carried on by it and to enter into and perform this Agreement, the
Non-Competition Agreement and the Assumption Agreement. This Agreement has been
duly executed and delivered by the Seller and constitutes, and when
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executed and delivered, each of the Non-Competition Agreement and the Assumption
Agreement will have been duly executed and delivered and will constitute, the
legal, valid and binding obligation of the Seller, enforceable against it in
accordance with their respective terms.
7.2. Financial Statements, etc. The Seller has furnished to the
Buyer complete and correct copies of its audited balance sheets and profit and
loss statements for the Stations as at December 31, 1996, for the period then
ended and its unaudited balance sheets and profit and loss statements for the
Stations at March 31, 1997, for the calendar year then ended. Such financial
statements have been prepared in accordance with generally accepted accounting
principles on a consistent basis throughout the periods indicated and fairly
present the financial condition of the Stations as at the date specified therein
and the results of their operations for the period then ended, subject to audit
and normal year-end adjustments.
7.3. Title to Acquired Assets, etc. The Acquired Assets constitute
all of the Seller's assets (other than the Excluded Assets) used, necessary or
useful in connection with the operation of the Stations. Except for Permitted
Encumbrances, the Seller has good and valid title to all of the Acquired Assets,
free and clear of all leases, mortgages, restrictions, liens, options, pledges,
charges, security interests, encumbrances or title retention agreements
(collectively, "Encumbrances"). Each of the Contracts is valid and subsisting
and no event or condition exists that constitutes, or after notice or lapse of
time or both would constitute, a material default thereunder or other event
which would allow cancellation or early termination by the other party or
parties thereto. All of the Acquired Assets are transferable by the Seller by
the Seller's sole act and deed and at the Closing Date no certain of the
Contracts described in Schedule 2.3 may be assigned only with the consent of
third parties, each of such required consents being specified in Schedule 2.3.
All of the Acquired Assets are in good operating condition and repair, ordinary
wear and tear excepted, are suitable for the purposes for which they are used
and comply with all requirements of the FCC.
7.4. FCC Licenses. The Seller is the holder of unrestricted licenses
and other authorizations issued by the FCC, copies of which licenses and
authorizations are attached hereto as Schedule 7.4 (collectively, the
"Licenses"), that authorize the Seller to operate the Stations in accordance
with those specifications also set forth in the Licenses. The Licenses have been
duly and validly issued, are in full force and effect, and are transferable with
the consent of the FCC. The Licenses are valid through the dates indicated
thereon. There are no orders, complaints, proceedings or investigations pending
or, to the Seller's knowledge, threatened that would affect the validity of the
Licenses,
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other than FCC rulemaking procedures of general application. The Stations and
the Real Estate are in compliance in all material respects with the terms of the
Licenses and all material statutes, rules, regulations and policies of the FCC
or any federal, state or local agencies having jurisdiction over the Stations,
including all applicable radio signal transmission, electromagnetic radiation,
zoning, building and environmental laws, rules and regulations. All transmitters
used or useful in the operation of the Stations now operate in a manner such
that any FCC action for which environmental factors must be considered would not
constitute a major action as defined in 47 C.F.R. 1.1305 as in effect on the
date hereof.
7.5. Intellectual Property. Except as otherwise disclosed on
Schedule 2.2, the Seller owns or licenses all trade names, service marks, logos,
slogans, jingles and other intellectual property used for the operation of the
Stations, all of which are being assigned to the Buyer hereunder. To the best of
the Seller's knowledge after due diligence and inquiry, none of such
intellectual property infringes any intellectual property or related rights of
third parties nor is any third party infringing on the Seller's rights with
respect to such intellectual property.
7.6. Employees of the Seller. Attached hereto as Schedule 7.6 is a
complete and accurate list of all of the officers and employees of the Seller
employed primarily in connection with the operation of the Stations, their
respective monthly rates of compensation as of the date hereof and their accrued
vacation entitlement, if any.
7.7. Approval by Governmental Agencies. Except for the FCC Consent
and the filings required pursuant to the HSR Act (if any) and the rules and
regulations issued thereunder, no approval of or filing with any governmental
administrative agency or authority is required for the execution or delivery of
this Agreement by the Seller or the consummation of the transactions
contemplated herein.
7.8. No Unlisted Agreement. The Seller is not a party to or subject
to or covered by any other material agreement or plan or policy relating to the
operation of the Stations or the employment of the Stations' employees. Any
unfunded liabilities of the Seller with respect to any such agreements, plans or
policies comprising pension or other employee benefits are set forth in Schedule
7.8. Each of Schedule 2.3 and Schedule 4 accurately sets forth all of the
material terms of the Seller's barter and other trade agreements assigned to the
Seller pursuant to this Agreement and in existence on the date hereof, which
terms, including, without limitation, the rates at which station radio time of
any of the Stations is traded, are consistent with the Seller's historic
practice with respect to such barter or other trade agreements.
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7.9. Labor Laws. The Seller has complied with all applicable laws,
rules, collective bargaining agreements, and regulations pertaining to the
employment of labor or the provision of personnel benefits in connection with
the Stations. The Seller has paid all taxes and withheld all amounts required by
law or agreement to be withheld from compensation of the Stations' employees and
is not liable for arrears of wages or for tax or penalty for failure to comply
with the foregoing. There are no controversies pending or, to the best of the
Seller's knowledge, threatened between the Seller and the employees of the
Stations which would have a Materially Adverse Effect.
7.10. Records and Reports. Except to the extent that the failure to
comply with such rules of the FCC has, and will have, no material impact on the
ownership, operation or transfer of the Stations; (a) all statements relating to
the Stations currently required to be filed by the Seller with the FCC or any
governmental instrumentality have been filed and complied with and are complete
and correct as filed; (b) all such statements shall be continued to be filed on
a current basis until the Closing Date, and will be complete and correct as
filed; (c) all items required by the FCC to be placed in the local public record
files of the Stations have been placed in such files and are in possession of
the Seller, and all such documents are complete and correct; and (d) all
required logs and business records relating to the operation of the Stations
have been maintained in accordance with the rules of the FCC and are in
possession of the Seller. The Seller's local public files will be transferred to
the Buyer at the Closing and will be complete and up-to-date.
7.11. Insurance. The Seller currently maintains, with respect to all
of the insurable assets of the Stations, the insurance policies listed and
described on Schedule 7.11.
7.12. Brokers. Seller has neither employed nor is liable to any
broker, finder or any other third party in connection with the transactions
contemplated by this Agreement.
7.13. Disclosure. No representation or warranty by the Seller in
this Agreement or in any other document delivered or to be delivered to the
Buyer in connection herewith contains or will contain any untrue statement of a
material fact or omits or will omit to state a material fact required to be
stated therein or necessary to make the statements contained therein not
misleading or necessary in order to provide a prospective purchaser of the
business of the Seller with proper and complete information as to the Seller and
the identity and character of the Acquired Assets and the Contracts. There is no
material fact known to the Seller relating to the Acquired Assets, the
Contracts, the operation of the Stations with the Acquired Assets and the
Contracts or liabilities arising therefrom that may materially adversely affect
the same and that has not been disclosed to the Buyer in writing.
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7.14. Environmental Matters. In the course of any activities
conducted by the Seller in connection with the Real Estate, Seller has complied
in all material respects with all federal, state and local environmental laws,
rules and regulations applicable to the Stations and its operations, including
but not limited to the FCC's guidelines regarding RF radiation, and Seller has
actual knowledge of no facts which would constitute a material violation of such
laws, rules and regulations with respect to the Real Estate or the Stations.
7.15. Litigation. Except as set forth in Schedule 7.15 hereto, there
are no actions, suits, proceedings or investigations of any kind pending or, to
the best knowledge of the Seller, threatened against the Seller before any
court, tribunal or administrative agency or board that, if adversely determined,
would, either in any case or in the aggregate, have a Materially Adverse Effect.
7.16. Authorization. The execution, delivery and performance of this
Agreement, the Non-Competition Agreement and the Assumption Agreement and the
performance by the Seller of all of its agreements and obligations under each of
such documents (a) are within the corporate authority of the Seller, (b) have
been duly authorized by all necessary corporate proceedings, (c) do not conflict
with or result in any breach or contravention of any provision of law, statute,
rule or regulation to which the Seller is subject or any judgment, statute, rule
or regulation to which the Seller is subject or any judgment, order, writ,
injunction, license or permit applicable to such Person and (d) do not conflict
with any provision of the corporate charter or bylaws of, any agreement or other
instrument binding upon the Seller.
SECTION 8. REPRESENTATION, WARRANTIES AND COVENANTS BY THE BUYER. The
Buyer represents and warrants to the Seller as follows:
8.1. Organization; Authority; Approvals; Binding Effect. The Buyer
is a corporation duly organized and validly existing under the laws of the State
of Delaware. The Buyer has the power to enter into and perform this Agreement,
the Non-Competition Agreement and the Assumption Agreement. This Agreement has
been duly executed and delivered by the Buyer and constitutes, and when executed
and delivered hereunder by the Buyer, each of the Non-Competition Agreement and
the Assumption Agreement, will have been duly executed by the Buyer and will
constitute, the legal, valid and binding obligation of the Buyer, enforceable
against the Buyer in accordance with its terms.
8.2. Authorization. The execution, delivery and performance of this
Agreement, the Non-Competition Agreement and the Assumption Agreement and the
performance by the Buyer of all of its agreements and obligations under each of
such documents (a) are within the corporate authority of the Buyer, (b) have
been duly authorized by all necessary corporate proceedings, (c) do not conflict
with or result in any breach or contravention of
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any provision of law, statute, rule or regulation to which the Buyer is subject
or any judgement, order, writ, injunction, license or permit applicable to the
Buyer and (d) do not conflict with any provision of the corporation charter or
bylaws of, any agreement or other instrument binding upon the Buyer.
8.3. Governmental Consent. Except for the FCC Consent and filings
required by the HSR Act, if any, and the rules and regulations issued
thereunder, no approval of or filing with any governmental administrative agency
or authority is required for the execution or delivery of this Agreement by the
Buyer or the consummation of the transactions contemplated herein.
8.4. Brokers. Buyer has neither employed nor is liable to any
broker, finder or any other third party in connection with the transactions
contemplated by this Agreement.
8.5. Disclosure. No representation or warranty by the Buyer in this
Agreement or in any other document delivered or to be delivered to the Seller in
connection herewith contains or will contain any untrue statement of material
fact or omits or will omit to state a material fact required to be stated
therein.
SECTION 9. AGREEMENTS BY THE SELLER PENDING CLOSING DATE.
9.1. Affirmative Covenants. Between the date hereof and the Closing
Date, the Seller shall:
(a) subject to the terms of the Time Brokerage Agreement,
maintain the Stations Records in accordance with the Seller's current
practice, and, from time to time, upon reasonable notice and during
regular business hours, give to representatives of the Buyer full
access to the Stations Records and cooperate in discussing the business
and affairs of the Seller with the representatives of the Buyer;
(b) subject to the terms of the Time Brokerage Agreement, keep
in good repair and maintain all of the property related to or used in
the Stations in good operating condition and in accordance with FCC
regulations and the Seller's current practice;
(c) maintain at all times with respect to all of the Stations'
insurable assets the insurance policies currently in effect or
substantially similar policies with other financially sound and
reputable insurers;
(d) subject to the terms of the Time Brokerage Agreement,
conduct continuously the broadcast programs and the business of the
Stations with due diligence in accordance with the terms and
requirements of the Licenses and use the Seller's commercially
reasonable
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efforts to preserve and maintain the Stations' business organization
and the goodwill and support of the Stations' listeners, advertisers,
employees and other persons having business relations with the
Stations;
(e) employ the Seller's commercially reasonable efforts to
secure, before the Closing Date, the consent, in form and substance
satisfactory to the Buyer, to the consummation of the transactions
contemplated by this Agreement by each party to any agreement,
including, without limitation, any Contract listed in Schedule 2.3 and
any Contract entered into after the date hereof, under which such
transactions would constitute a material default, would accelerate
obligations of the Seller or would permit cancellation or early
termination of any such agreement;
(f) between the date hereof and for a period of one (1) year
from the Closing Date, Seller shall not, directly or indirectly,
through any agent or otherwise, hire or solicit the employment of any
of the employees listed on Schedule 7.7 who are hired by Buyer at or
after the Closing or who are subject to non-competition agreements with
Buyer (but only to the extent limited by such non-competition
agreements), except as agreed to in writing by Buyer and Seller; and
(g) comply in all material respects with the terms of the Time
Brokerage Agreement.
9.2. Negative Covenants. Between the date hereof and the Closing
Date, the Seller shall operate the Stations only in the ordinary course, and
shall not, without the consent of the Buyer, do any of the following: (a)
create, incur or permit the creation of any Encumbrance on the Seller's
business, property or assets now owned or hereafter acquired in connection with
the Stations; (b) except for contracts for the sale of advertising for cash for
which no prepayment has been received and with not more than twelve (12) months
remaining in their term, and except for such other contracts or leases that
involve commitments by the Seller not in excess of $50,000 in any one case nor
more than $100,000 in the aggregate, make or become a party to any contract,
lease or commitment, or renew, extend, amend or modify any contract, lease or
commitment without the prior written consent of the Buyer; (c) agree to pay,
conditionally or otherwise, any bonus (other than bonuses in amounts or
calculated according to methods disclosed to the Buyer and payable as a reward
for continued satisfactory performance during the period from the date of this
Agreement to the Closing Date, which bonuses shall be payable by the Seller),
extra compensation, pension or severance pay to any agent, officer or employee
or increase the rate of compensation of any of the officers or employees of the
Seller above the rates shown on Schedule 7.6 except for certain regularly
scheduled annual raises noted on Schedule 7.6 which would normally be made
between the date of this Agreement and the Closing Date and which are in
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amounts consistent with the Seller's prior practices; (d) permit, either in
violation of the FCC's rules and regulations or contrary to the Seller's past
practices relating to record retention, the removal from the Stations, or the
destruction, or the Stations' Records; or (e) except to the extent that FCC
rules and regulations require that such matters be left to the discretion of the
Seller, change materially the manner in which the Seller operates the Stations
or the Seller's practices with respect to the Stations, including, without
limitation, the type, quality and amount of promotional support which the Seller
has historically provided to the Stations.
9.3. Control of Stations. Except as expressly provided for in the
Time Brokerage Agreement, the Buyer shall not directly or indirectly control,
supervise or direct, or attempt to control, supervise or direct the operations
of the Stations; such operations, including complete control and supervision of
all programs and employees, shall be the sole responsibility of the Seller.
Without limiting the foregoing, the Buyer shall not induce any of the employees
of the Seller to leave their employment with the Seller or employ or otherwise
contract for the services of any person who is now employed by the Seller at the
time of the commencement of employment discussions between the Buyer and such
person.
SECTION 10. BEST EFFORTS TO SECURE REGULATORY AUTHORIZATION AND FCC
CONSENT.
(a) If necessary, the Seller and the Buyer shall proceed to
file, not later than fifteen (15) business days following the date
hereof, with the FTC and the Antitrust Division of the United States
Department of Justice notification and report forms and documentary
material which comply with the provisions of the HSR Act and the rules
and regulations issued thereunder, and will promptly file any
additional information requested as soon as practicable after receipt
of the request. Neither of the Buyer or the Seller will take any action
which will have the effect of delaying, impairing or impeding the
receipt of any required approvals and both such parties will use their
best efforts to secure such approvals as promptly as possible.
(b) The Seller and Buyer shall proceed to file, not later than
ten (10) business days following the date hereof, proper applications
with the FCC requesting the FCC Consent, and shall file with the FCC
thereafter any other instruments necessary to obtain the FCC Consent,
including additional information or amendments to the application, and
shall cooperate fully with one another and shall otherwise use their
best efforts to procure the FCC Consent at the earliest possible date.
Without limiting the foregoing, neither the Buyer nor the Seller will
take any action which will have the effect of delaying, impairing or
impeding the
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receipt of the FCC Consent. All costs of obtaining such consents shall
be borne equally by the Seller and the Buyer.
SECTION 11. CONDITIONS PRECEDENT TO THE BUYER'S OBLIGATIONS. Each and
every obligation of the Buyer to be performed at the Closing shall be subject to
the satisfaction of the following conditions (to the extent noncompliance is not
waived in writing by the Buyer):
11.1. Representations, Warranties and Covenants of the Seller. The
representations and warranties of the Seller set forth in Section 7 shall be
true and correct in all material respects as of the Closing Date with the same
force and effect as though made again at and as of the Closing Date, except for
changes contemplated and permitted or required by this Agreement. The Seller
shall have performed and complied in all material respects with all agreements
and conditions required by this Agreement to be performed or complied with by
the Seller prior to or at the Closing. The Seller shall have executed and
delivered, in substantially the forms attached hereto, the Deed, the Assumption
Agreement, Xxxx of Sale, assignments of the Licenses and the Non-Competition
Agreement. The Seller shall have delivered to the Buyer the Seller's
certificate, dated as of the Closing Date, stating that the conditions set forth
in this Section 11.1 have been satisfied, together with a good standing
certificate relating to the Seller and issued by each of the Secretaries of
State of Delaware and New Hampshire, respectively.
11.2. Governmental Agency Approvals. The FCC Consent shall have
become effective and each other governmental agency the approval of which is
required prior to the consummation of any of the transactions contemplated by
this Agreement shall have approved such transaction on the terms contemplated by
this Agreement and the applicable (if any) waiting periods under the HSR Act and
the rules and regulations issued thereunder shall have expired; provided that
the parties hereto shall have complied with the provisions of Section 10(a)
hereof.
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11.3. Public Records File; Other Books and Records; Barter and Other
Trade Agreements. The Seller shall have delivered to the Buyer on the Closing
Date all books and records (or copies thereof) of the Seller relating to the
Seller's operation of the Stations (collectively, the "Stations' Records"), as
of the Closing Date. The Seller shall deliver at the Closing a schedule of all
of its current barter and other trade agreements and a statement of its
outstanding net barter and other trade balances as of the Closing Date. For a
period of not less than one (1) year after Closing, the Buyer agrees to retain
any Stations' Records in its possession. If required by the Seller for
regulatory, audit, tax or other reasonable and similar purposes, the Buyer will
grant the Seller reasonable access to, or make copies of the Stations' Records
relating to the pre-closing operations of the Stations as are in its possession.
The Seller will pay the Buyer the costs of copying such Stations' Records. The
Buyer will not destroy any of the Stations' Records relating to the pre-closing
operations of the Stations prior to six (6) years after the Closing Date without
notifying the Seller and allowing the other party to take possession of and
preserve such Stations' Records.
11.4. Consents. Each other party to each of the Leases, and each
other party to any Service Agreement or any other Contract or would constitute a
default giving rise to a claim for damages or injunctive relief which would have
a Materially Adverse Effect) shall have given such consent, at no expense to the
Buyer, in a form and substance approved by the Buyer (which approval shall not
be unreasonably withheld), as may be necessary to permit the consummation of the
transactions contemplated by this Agreement, all without default or acceleration
under or early termination or cancellation of such agreement and without charge.
11.5. No Materially Adverse Change. No action or proceeding shall
have been instituted, and no order, decree or judgment of any court or
governmental authority shall be subsisting, against the Buyer or the Seller that
would render it unlawful, as of the Closing Date, to effect the transactions
contemplated hereunder in accordance with the terms hereof or that would affect,
as of the Closing Date, the validity of the Licenses.
11.6. Opinion of Counsel. The Seller shall have delivered to the
Buyer on the Closing Date (a) a reasonable satisfactory opinion from Xxxxxxx,
Xxxx & Xxxxx, special counsel for the Seller, dated as of the Closing Date, and
(b) a reasonably satisfactory opinion of Xxxx, Scholer, Fierman, Xxxx & Handler
LLP, special FCC counsel to the Seller, dated as of the Closing Date, as to the
matters set forth in Section 7.4 and the validity of the FCC Consent.
11.7. Condition of Property. The Premises and Buildings as of the
Closing Date shall be in the same condition they are on the date of this
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Agreement subject to the terms of this Agreement, reasonable wear and tear and
physical damage the repair of which can be effected for not more than $5,000
only excepted, and free of all tenants and occupants except as permitted by the
terms of this Agreement, and in conformity with the terms of all recorded
Permitted Encumbrances.
11.8. Title Insurance Affidavits, Etc. Seller shall have delivered
such standard parties-in-possession and mechanics' lien affidavits, corporate
votes and the like as may be reasonably required by the Title Insurance Company
for it to issue the Title Policy as provided above. In addition, the Title
Policy shall have been issued to Buyer at standard rates by the Title Insurance
Company.
11.9. Non-Foreign Affidavit. Seller shall have delivered (a) a
transferor's certification of non-foreign status as required by Section
1445(b)(2) of the Internal Revenue Code and (b) a currently operative Occupancy
Permit.
11.10. Additional Certificates and Other Documents. On or before the
Closing Date, the Seller shall have furnished to the Buyer such additional
certificates and other documents as the Buyer may have reasonably requested as
to any of the conditions or other matters set forth in this Section 11,
including, without limitation, as to compliance with Section 11.1.
SECTION 12. CONDITIONS PRECEDENT TO THE SELLER'S OBLIGATIONS. Each and
every obligation of the Seller to be performed at the Closing shall be subject
to the satisfaction of the following conditions (to the extent noncompliance is
not waived in writing by the Seller):
12.1. Representations, Warranties and Covenants of the Buyer. The
representations and warranties of the Buyer set forth in Section 8 shall be true
and correct as to all material matters as of the Closing Date with the same
force and effect as though made again at and as of the Closing Date, except for
changes contemplated and permitted or required by this Agreement. The Buyer
shall have tendered to the Seller the Purchase Price, executed and delivered the
Non-Competition Agreement and performed and complied with all other agreements
and conditions required by this Agreement to be performed or complied with by
the Buyer prior to or at the Closing. The Buyer shall have delivered to the
Seller a certificate, dated as of the Closing Date, stating that the conditions
set forth in this Section 12.1 have been satisfied.
12.2. Governmental Agency Approvals. The FCC Consent shall have
become effective and each other government agency the approval of which is
required prior to the consummation of any of the transactions contemplated by
this Agreement shall have approved such transaction on the terms contemplated by
this Agreement and the applicable waiting periods under
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the HSR Act and the rules and regulations issued thereunder shall have expired;
provided that the parties hereto shall have complied with the provisions of
Section 10(a) hereof.
12.3. No Obstructive Proceeding. No action or proceeding shall have
been instituted, and no order, decree or judgment of any court, agency,
commission or governmental authority shall be subsisting, against the Buyer or
the Seller that would render it unlawful, as of the Closing Date, to effect the
transactions contemplated hereunder in accordance with terms hereof.
12.4. Opinion of Counsel. The Buyer shall have delivered to the
Seller on the Closing Date an opinion from Xxxxxxx Xxxxxx, General Counsel for
the Buyer, that is in form and detail reasonably satisfactory to the Seller.
SECTION 13. INDEMNIFICATION BY BUYER.
13.1. Indemnification of Seller. The Buyer agrees to indemnify and
hold the Seller harmless from and with respect to any and all claims,
liabilities, losses, damages, costs and expenses (including reasonable
attorney's fees) arising from or related to any of the following: (a) any
material inaccuracies in any representation or warranty made by the Buyer herein
or in any document delivered by the Buyer in connection herewith, or any
material failure by the Buyer to comply with any covenant made by the Buyer in
this Agreement or any such document; (b) any and all claims, liabilities and
obligations arising out of the ownership or operation following the Closing Date
of the Stations or the Acquired Assets or the performance following the Closing
Date of the Contracts; provided that such claims, liabilities and obligations
are not based solely on facts existing prior to the Closing Date; (c) any
claims, liability or obligation with respect to any employee of the Buyer in
connection with his or her employment by the Buyer following the Closing Date;
or (d) any loss, cost or expense of the Seller relating to the failure of the
Buyer to comply in any material respect with the provisions of this Section 13,
provided that Buyer shall have no liability under this 13.1 until the
aggregate for all claims hereunder exceeds the sum of $20,000 (the "Threshold
Amount"), in which event Buyer shall then be liable for all claims for
indemnification hereunder, including the Threshold Amount.
13.2. Claims. In the event that the Seller desires to make a claim
against the Buyer under Section 13.1, the Seller shall notify the Buyer within
ninety (90) days of the date on which Seller becomes aware of all of the facts
and circumstances giving rise to such claim. Upon receipt of such notice from
the Seller of any claim made by a third party, the Buyer shall be entitled to
assume the defense of such claim, and in the case of such an assumption the
Buyer shall have the authority to negotiate, compromise and settle such claim at
its sole expense and cost, provided, that any such settlement shall include as
an
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unconditional term thereof the giving by such third party to the Seller of a
release from all liability in respect of such claim.
13.3. Limitation. No claim may be made pursuant to this Section 13
unless notice thereof pursuant to Section 13.2 has been given on or prior to the
second anniversary of the Closing Date; provided that if and to the extent that
the Seller continues to be liable directly to the third parties under any
Contract such time limitation shall not apply with respect to claims made
pursuant to this Section 13 and relating to the performance after the Closing
Date of such Contracts. No claim may be made in respect of any matter covered by
Section 13.1, including but not limited to any claim by the Seller based on any
inaccuracy of any representation or warranty made by the Buyer, except pursuant
to the provisions of this Section 13.
SECTION 14. INDEMNIFICATION BY SELLER.
14.1. Indemnification of Buyer. The Seller agrees to indemnify and
hold the Buyer harmless from and with respect to any and all claims,
liabilities, losses, damages, costs and expenses (including reasonable
attorney's fees) arising from or related to any of the following: (a) any
material inaccuracies in any representation or warranty made by the Seller
herein or in any document delivered by the Seller in connection herewith, or any
material failure by the Seller to comply with any covenant made by the Seller in
this Agreement or any such document; (b) any and all claims, liabilities and
obligations arising out of the ownership or operation on or prior to the Closing
Date of the Stations or the Acquired Assets or the performance on or prior to
the Closing Date of the Contracts; provided that such claims, liabilities and
obligations are based on facts which came into existence after the Closing Date;
(c) any claim or liability arising under the bulk sales or related tax laws of
any jurisdiction in connection with transactions contemplated by this Agreement
(in view of such indemnification obligation the Buyer hereby waives the Seller's
compliance with any such bulk sales and related tax laws as a condition to the
Closing hereunder); (d) any claims, liability or obligation with respect to any
employee of the Seller in connection with his or her employment and/or
termination of employment on or prior to the Closing Date by the Seller; (e) any
and all claims or counterclaims arising in connection with the Excluded Assets;
or (f) any loss, cost or expense of the Buyer relating to the failure of the
Seller to comply in any material respect with the provisions of this Section 14,
provided that Seller shall have no liability under this 14.1 until the
aggregate for all claims hereunder exceeds the Threshold Amount, in which event
Seller shall be liable for all claims for indemnification hereunder, including
the Threshold Amount.
14.2. Claims. In the event that the Buyer desires to make a claim
against the Seller under Section 14.1, the Buyer shall notify the Seller
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within ninety (90) days of the date on which Buyer becomes aware of all of the
facts and circumstances giving rise to such claim. Upon receipt of such notice
from the Buyer of any claim made by a third party, the Seller shall be entitled
to assume the defense of such claim, and in the case of such an assumption the
Seller shall have the authority to negotiate, compromise and settle such claim
at its sole expense and cost; provided, that any such settlement shall include
as an unconditional term thereof the giving by such third party to the Buyer of
a release from all liability with respect to such claim.
14.3. Limitations. No claim may be made pursuant to this Section 14
unless notice thereof pursuant to Section 14.2 has been given on or prior to the
second anniversary of the Closing Date, or, if the claim relates to any tax
liability or claim, the third anniversary of the Closing Date. No claim may be
made in respect of any matter covered by Section 14.1, including but not limited
to any claim by the Buyer based on any inaccuracy of any representation or
warranty made by the Seller, except pursuant to the provisions of this Section
14.
SECTION 15. TERMINATION OF AGREEMENT.
15.1. Termination. This Agreement may be terminated by either Buyer
or Seller (as long as such party has complied in all material respects with its
covenants and agreements under this Agreement) upon the occurrence of any of the
following:
(a) if, on or prior to the Closing Date, the other party
hereto defaults in any material respect in the observance or in the due
and timely performance of any of its covenants or agreements herein
contained and such default shall not be cured within thirty (30) days
of the date of notice of default served by the party claiming such
default; or
(b) on ten (10) days written notice if the FCC denies any
application requesting the FCC Consent, or if the FCC fails to grant
the FCC Consent within six (6) months following the date of this
Agreement, provided, that Seller shall extend such time limit an
additional one (1) month at the request of Buyer so long as Buyer shall
be diligently prosecuting the FCC Application in good faith and the FCC
has not issued any ruling or decision denying the FCC Application; or
(c) if there shall be in effect any judgment, decree or order
that would prevent or make unlawful the Closing of this Agreement; or
(d) by Buyer only, if between the date hereof and the Closing
Date the Stations for any reason (other than the failure of the Buyer
to comply with the terms of the Time Brokerage Agreement) does not
broadcast at substantially full licensed power and antenna heights
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as described in the License (an "Off Air Event") for a continuous
period of five (5) days or if all Off Air Events result in an aggregate
of five (5) days wherein the Stations does not broadcast at full
licensed power and antenna height or if there are more than four (4)
Off Air Events, each lasting six (6) hours or more.
15.2. Drawdown of Escrowed Amounts. The Buyer and the Seller hereby
agree that upon the termination of this Agreement as a result of the failure by
or inability of the Buyer to comply in any material respect with the terms of
this Agreement, the Escrow Deposit shall be paid to Seller. Seller acknowledges
and agrees that the Escrow Deposit shall be the sole and exclusive remedy of
Seller against Buyer in connection with such default and termination.
SECTION 16. GENERAL.
16.1. Expenses. Except as otherwise expressly provided in this
Agreement, all expenses of the preparation, execution and consummation of this
Agreement and of the transactions contemplated hereby shall be borne by the
party incurring such expenses.
16.2. Notices. All notices, demands and other communications
hereunder shall be in writing or by written telecommunication, and shall be
deemed to have been duly given if delivered personally or if mailed by certified
mail, return receipt requested, postage prepaid, or sent by written
telecommunication, as follows: (a) if to the Seller, to: Precision Media
Corporation, 00 Xxx Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 , Attention:
Xxxxxx X. Law, Jr. and (b) if to the Buyer, to: American Radio Systems, 000
Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxxx X. Xxxxx, CEO.
16.3. Further Assurances. From time to time, at the request of the
Buyer and without further consideration, the Seller shall execute and deliver
such further instruments of conveyance and transfer and take such other actions
as the Buyer may reasonably require more effectively to convey and transfer any
of the Acquired Assets and to assign any of the Contracts to the Buyer. The
Seller and the Buyer shall also execute and deliver to the appropriate other
party such other instruments as may be reasonably required in connection with
the performance of this Agreement and each shall take all such further actions
as may be reasonably required to carry out the transactions contemplated by this
Agreement.
16.4. Full Consideration; Risk of Loss. Except as otherwise
expressly provided in this Agreement, the Seller shall be responsible to deliver
the Acquired Assets and to assign the Contracts upon the terms of this Agreement
without further cost or expense to the Buyer and shall be responsible
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for satisfying any and all costs and expenses payable to any third parties
arising as a result of the Seller's delivery of the Acquired Assets and the
assignment of the Contracts to the Buyer. The risk of loss, damage or
destruction to any Acquired Asset from any cause whatsoever prior to the Closing
shall be borne by the Seller, who shall, prior to the Closing and at the
Seller's own expense, repair, rebuild or replace any Acquired Asset so lost,
damaged or destroyed (but only to the extent of available insurance proceeds).
16.5. Public Statements or Releases. The parties hereto each agree
that neither party to this Agreement will make any public announcement of the
existence of, or reveal the status of, the transactions provided for herein,
without the prior approval of the other party hereto. Each party hereto agrees
that it will not unreasonably withhold or delay any such approval. Nothing
contained in this Section 16.5 shall prevent any party from making such public
announcements as such party may consider necessary in order to satisfy such
party's legal or contractual obligations.
16.6. NonRecourse Obligations. Notwithstanding any contrary
provision contained in this Agreement, the Non-Competition Agreement, the
Assumption Agreement or any other agreement, document or instrument delivered in
connection herewith or therewith, none of the shareholders, officers, directors
or employees of the Buyer or the Seller nor any legal representative, heir,
successor or assignee of any shareholder, officer, director or employee of the
Buyer or the Seller shall have any personal liability for any misrepresentation
or breach of warranty made by the Buyer or the Seller hereunder or thereunder,
or any failure by the Buyer or the Seller to perform or observe any of the
terms, covenants or conditions to be performed or observed by the Buyer
hereunder or thereunder or any other obligation arising hereunder or thereunder.
In the event of any such misrepresentation, breach or failure, the Seller or the
Buyer, as the case may be, shall be entitled to proceed solely against the Buyer
or the Seller, as the case may be.
16.7. Specific Performance. Seller recognizes that, in the event
Seller refuses to perform the provisions of this Agreement, monetary damages
alone will not be adequate. Buyer shall, therefore, be entitled in such event,
in addition to bringing suit at law or equity for money or other damages, to
obtain specific performance of the terms of this Agreement. In any action to
enforce the provisions of this Agreement, Seller shall waive the defense that
there is an adequate remedy at law or equity and agrees that Buyer shall have
the right to obtain specific performance of the terms of this Agreement without
being required to prove actual damages, post bond or furnish other security.
16.8. Miscellaneous. This Agreement contains the entire
understanding of the parties, supersedes all prior agreements and understandings
relating to the subject matter hereof and shall not be amended
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except by a written instrument hereafter signed by each of the parties hereto.
The validity and construction of this Agreement shall be governed by the laws of
the State of Connecticut. The headings of sections are for reference only and
shall not limit or control the meaning thereof. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Neither party may assign its interests under this
Agreement without the prior consent of the other, except that Buyer may assign
its interests to a wholly-owned subsidiary of the Buyer without the Seller's
prior consent (but only if American Radio Systems Corporation remains liable for
all of the obligations of such assignee arising hereunder or in connection
herewith). The representations and warranties of each party contained in this
Agreement or otherwise made in writing in connection with the transactions
contemplated hereby shall be deemed material and, notwithstanding any
investigation by the other party hereto, shall be deemed to have been relied
upon by such other party and shall survive the Closing and the consummation of
the transactions contemplated hereby. Except as otherwise expressly provided
herein, nothing herein expressed or implied is intended or shall be construed to
confer upon or to give any person, other than the Seller and the Buyer, any
rights or remedies under or by reason of this Agreement. This Agreement may be
executed in several counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
PRECISION MEDIA CORPORATION
By:_______________________
Title:
AMERICAN RADIO SYSTEMS
CORPORATION
By:_______________________
Title:
EXHIBIT A
Premises
EXHIBIT B
Assumption Agreement
EXHIBIT C
Escrow Agreement
EXHIBIT D
Non-Competition Agreement
EXHIBIT E-1
Farmington Lease
EXHIBIT E-2
Rochester Lease
EXHIBIT E-3
Stratham Lease
EXHIBIT F
Service Agreements
EXHIBIT G
Time Brokerage Agreement
SCHEDULE 2.1
Tangible Assets
SCHEDULE 2.2
Intangible Assets
Call Signs
1. "WMYF-AM"
2. "WERZ-FM"
3. "WZNN-AM"
4. "WSRI-FM"
SCHEDULE 2.3
Contracts
SCHEDULE 4
TRADE ACCOUNTS
See Attached
SCHEDULE 5.2
Permitted Encumbrances
(i) Liens to secure taxes, assessments and other government
charges in respect of obligations not overdue or liens on properties to
secure claims for labor, material or supplies in respect of obligations
not overdue;
(ii) Deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age
pensions or other social security obligations;
(iii) Encumbrances on Real Estate consisting of easements,
rights of way, zoning restrictions, restrictions on the use of real
property and defects and irregularities in the title thereto,
landlord's or lessor's liens under leases to which the Seller is a
party, and other minor liens or encumbrances none of which in the
opinion of the Seller interferes materially with the use of the
property affected in the ordinary conduct of the business of the Seller
which defects do not individually or in the aggregate have a materially
adverse effect on the business of the Seller; and
SCHEDULE 7.4
Licenses
FCC license for WMYF, WERZ, WZNN and WSRI attached hereto as Attachment
7.4.
SCHEDULE 7.6
Employees
The attached list contains payroll information for bi-monthly pay
period ending May 11, 1997 for employees of Stations WMYF, WERZ, WZNN and WSRI.
SCHEDULE 7.8
Unfunded Liabilities
None.
SCHEDULE 7.11
Insurance
SCHEDULE 7.15
Litigation
